I have no idea what that’s supposed to mean. All you fonts look alike, it’s hard to remember the quirks of each of you.
Maybe it means he’s not even putting in the effort to care less, that’s how little he thinks of you?
I got nothing.
ivn1188, you’re consistently awesome 
It’s doubly crazy, because Ewoks actually live on Endor’s forest moon.
I’m glad I finally had something to contribute to this series of threads.
Oh, boy. I guess this is a very good example of the problems you are embroiling yourself in, Stoid. I will not give you legal advice. But…is your argument that this is inadmissible hearsay critical to your case or merely incidental? Did the primary judge make a finding of fact in which she accepted the Plaintiff’s version of this conversation? Was objection taken to this evidence at the time the evidence was led (or at any time during the trial?)
Think about the distinction between those pieces of evidence which are inadmissible and those which are merely of arguably little weight.
If I confess that I killed JFK, that is prima facie admissible against me at my trial for shooting JFK based on that confession, should someone be so foolish as to take it seriously. In the real world it would have little weight. But that does not mean it is inadmissible.
Upthread, in a discussion about accountants giving advice on the back of napkins, someone said “If there is no napkin, there is no evidence.” That is not really so, but derives from the CSI School of Law approach to what is “evidence”. Evidence is primarily what someone swears to under oath. Objects can also be evidence, but their absence is not necessarily determinative of the issue. A person can give oral evidence of the advice that they received from the accountant, and that it was noted on a napkin, and there are many circumstances in which the absence of the napkin would not be fatal to the admissibility of the account. The narrative might have less weight in the absence of the napkin, but there are plenty of circumstances in which it does not render the account of the putative client of the bean-counter inadmissible.
Just because a litigant thinks that a piece of evidence led against him or her is of little weight does not make it for that reason inadmissible.
If it is a key plank of your overall argument that the Plaintiff’s evidence was inadmissible, then you should prepare fallback arguments against the prospect that you will lose this one. That is not to say that you will lose it; there may be some aspect of the case about which you have not told us which makes your argument correct. But you should consider that your apparent confidence that you are correct might be deceiving you, and that you might have an uphill battle.
Nothing I have said should be taken as a guide to how you conduct your case, or how you make decisions about what arguments you should and should not run. I merely suggest that in your preparation, you should have other arguments prepared against the prospect that this argument is not necessarily a winner.
Quick tip: making things up because it works for you to imagine things were said…not testimony. Not anything, really. Except perhaps just fun for you…and I wouldn’t want to interfere with that, so please…enjoy! (Note that the whole point is that he does not remember anything clearly. He doesn’t remember anything at all. What he remembers is the anger and why he was angry, and is essentially extrapolating from the anger that he must have, somehow, but he doesn’t have any idea how, conveyed that he did not want things spent. Accuracy is a beautiful thing. Let precision be your friend, it wants to be.)
Well, I don’t need to address it. It’s automatically addressed.
[8: 1555] Limitation-statement of memory
belief inadmissible to prove fact remembered
believed: A declarant’s statement of memory or
belief is not admissible under §1250 to prove the
fact remembered or believed. [Ev.C. §12S0(b}]
1} [8:1556] Rationale: To hold otherwise
would virtually undo the hearsay rule:
Any statement of a past event is essentially a
statement of the declarant’s then-existing state "
of mind-his or her memory or beliel-regarding
the past event. If such evidence (the statement
of memory) were admissible to show the
fact remembered or believed actually occurred,
any statement narrating a past event would, “by
a process of circuitous reasoning,” be admissible
to prove the event occurred. [See Ev.C.
§1250, Comment]
The Plaintiff was making a statement “narrating” the “past event” of having “Told her”…to prove that in the past he told her.
An exceptional example with which to illustrate the concept described.
The assertion is that he conveyed the concept to the defendant, not even that he knows whether he wrote it or said it via email or in person, only that he conveyed his thoughts through some unremembered means to the defendant. (I’m ready to double down on telepathy.) The proof offered for this act of expression about which no other detail is recalled is his statement that he knows he conveyed the information somehow. Then his memory of being angry is offered as “proof” that his otherwise shockingly blank memory must be accurate as to facts about which he recalls pretty much nothing except that he was angry and why he was angry - and since he was angry about it, he must have conveyed it.
The rules say:
Admissible only to prove declarant’s prior
mental or physical state which is in issue: The
declarant’s past mental/physical condition statement is
admissible only to prove his or her prior mental/physical
condition to which the statement relates and only
when it is itself in issue in the case. [Ev.C. §1251(b)]
His being angry was not at issue in the case.
Compare-inadmissible to prove any
other fact: The prior state-of-mind/physical condition
declaration cannot be offered to prove any
fact other than the declarant’s state of mind, emotion
or physical sensation to which it refers. [
In considering the testimony, what do you believe the Plaintiff’s meaning and intention was in his statement? To prove that he was angry, or to prove that he must have conveyed his desires to the defendant, seeing as how he was so damn angry? (Wait, I think I get it now… of course he must have conveyed his thoughts and desires, and of course he doesn’t remember all the pesky details…that much anger simply incinerated all other memories.)
If you do not believe that either of the preceding accurately parses the statement, perhaps you can offer an alternative analysis. (Of the actual statement itself, not something you made up because it’s easier. Words matter. Who says them matters. What they mean matters.)
I have no intention of bringing any of this up. None of it was mentioned in trial. I was reading a treatise on evidence for other reasons, focused on witness testimony because that was the entirety of the Plaintiff’s case, (seriously. He asserted things. And pretty much never the same way twice.) and realized when i read the hearsay sections how certain things fit in.
It’s all just exercise, but, in response to your query, it did occur to me that there are reasons for the rules, and one would hope that when the trier of fact is a judge, they would remember why certain kinds of evidence are less valuable, whether they were objected to or not. Theoretically, it speaks to the use and abuse of a judge’s discretion… if they consider and make judgments based on evidence that a few hundred years of jurisprudence has singled out as being of lesser value… but I wouldn’t be busting my ass to sell that. It was just a thought that occurred to me.
Yes, that’s right - at least in jurisdictions which follow the decisions of the Judicial Committee of the Imperial Privy Council. In Subramaniam v. P.P., [1956] 1 W.L.W. 965 (P.C.-Malaysia), the Privy Council held that such a statement was not hearsay and was admissible.
The case arose during the insurgency in Malaysia in the 1950s. The accused was charged with possession of ammunition contrary to regulations. His defence was that he was acting under duress, because the insurgents had compelled him to assist them by means of threats, and that they had said they would kill him if he didn’t assist them. The trial judge held that he could not testify about the death threats, since that would be hearsay. The Privy Council reversed that decision and held that the statements were not hearsay and were admissible.
Their reasoning was that the accused’s purpose in testifying about the statements was not to demonstrate the truth of the statements - if that was his purpose, they would be hearsay. Rather, he was testifying that the threats were made, as an objective fact, and that he personally believed them, which was essential to establish his own state of mind for the defence of duress. He was not trying to show that the insurgents actually intended to carry out the threats. It was the fact that the threats were made, not whether they were true or not, so they were not hearsay.
You know, I’ve finally figured something out. I spent way too much money on my legal education. Despite courses in both civil procedure and evidence, I don’t know anything about them, because I certainly would take exception to a number of assertions made by a certain layperson in this thread, but I appear to be wrong each and every time. Along with all my attorney brethren/sistren. All of them. Not one attorney walks in here and says that this layperson is right in any legal argument she makes. Amazing. To think of all the money I could have saved. :smack:
In drafting legal documents relating to this sort of issue, I avoid the term “medical professional” because it is too general and includes more than just doctors of medicine. It’s not exactly clear what professional groups are included in the term, so instead I use specific refernces to the types of professionals meant to be included. I’ve not run across the issue of whether licensed massage therapists would be included in the term, but it wouldn’t surprise me, in some contexts, similar to physiotherapists.
I’ve had doctors prescribe both physical therapy and massage therapy for the same muscular problem, and my employer’s insurance company covers both.
(Posting from Canada, by the way, so there may be regional differences at play.)
Your sarcasm is misplaced because in fact you did misunderstand.
The issue in the other thread was over whether it’s possible to give legal information that’s relevant to a specific situation without it being legal advice.
What you quoted from the Palmer case is that if a non-lawyer gave something which was in fact “specific legal advice” over a website, it would be unauthorized practice of law. No one in the other thread disagreed with this, or even discussed this to my memory.
In sum, the fact that the advice was transmitted via the internet is not part of the discussion.
Since you seem to be under the impression that the “whole thread” was about this issue, I imagine you should be able to come up with someone actually saying this. Have at it. Unless then, please refrain from pretending that the issue - in this or the other thread - is about whether legal advice offered on the internet constitutes practice of law.
Actually, in the part that you didn’t quote (if I were as charitable as you are I might accuse you of not reading it) Palmer also claimed that he responded to numerous request asking for “legal advice”, and he beat the rap here by claiming that he was only offering “common sense” advice on “dealing with lawyers and the legal system”. So it’s murkier than it might seem.
But even that’s not particularly relevant to our discussion, which is about things that are not a violation of any standard but which might get you sued. And the point here is - again - that the fact that Palmer got sued is not an indication that someone responding to an informal request for information, whether on or off the internet might be sued, since Palmer attracted attention by running an anti-lawyer website which explicitly claimed to be offering “legal advice”.
Fair enough. In our documents we don’t refer to massage therapists as medical professionals at all, but that’s partly because we very rarely have to document or discuss the opinions of any medical professionals other than physicians, physical therapists and ahem chiropractors.
Best of luck in your appeal, counselor. Do let us know when oral arguments are docketed. I might fly to Los Angeles myself.
Uh, okay. I assume you write very differently in reality than you do on the Boards then, because if there’s one word I would NOT use to describe your posts about your case, that word would be “truncated,” and if there was one word I would NOT use to describe your arguments, that word would be “clear.”
It’s very fair to want to undestand concepts so you don’t end up ambushed by one you don’t understand. But that doesn’t mean you don’t get caught up in esoterica, minutiae, and tangents; again, all avaiable proof from the Boards is that you do. I would add “feel free to disregard,” but I’m confident you’ll disregard without an invitation.
I have to agree with Jodi’s assessment of your work vis-a-vis clarity.
Do you write your briefs and pleadings the way you write here? How strange if you do, how strange to expect that anyone would.
(This is not about every lawyer in every thread every time. Just as my other thread was not about every lawyer in every thread and phone call and conversation - this is about the lawyers that its about. If you find yourself reacting, then you have self-selected into the group.)
Do any of the previously cited lawyers in these threads realize how the overwhelming response and attitude has been: We,re lawyers, we say so, you should simply accept what we say as unassailable truth. Because we’re lawyers. (Or rather, we say we are. Really we’re handles on a message board but that’s getting too deep).
Then, when auto-acceptance doesn’t come, there’s derision, sarcasm, and in some cases, nothing less than middle-school style bullying that’s…kinda sad, actually, when you consider it carefully.
So then in a few, painfully few, instances, lawyers have tossed a few links and cites into the ring like chum. No “meaningful analysis”, no discussion, no helpful debate about exactly what the cites are proving, just “Here. Eat this. It’s good for you. When you’re done you’ll accept that I’m (We’re) right and stop all this foolish arguing with The Great and Powerful People Behind the Curtain Marked JD.”
Those cites have then been read. In the case of the cites about legal advise at least, after I read them and quoted them, I don’t recall any lawyers actually addressing the cases and making any attempt to actually show why my understanding of what appeared to be plain (which was that none of them came close to proving that answering a couple of questions about cases a lawyer might have seen rose to the level of advice and would be treated so by the court.) was wrong. I do recall lawyers doing more of what they have done a lot of: simply asserting that it was wrong and that I (and a few others) simply don’t understand it, or that the cites don’t matter, the article does, and we jsut don’t understand that because we’re not lawyers.
This is the the Straight Dope. The whole point around here is not to take things on faith. Show us. Prove to us. Don’t just say “I said so and I (claim to) have a piece of paper that automatically means I’m right and you’re wrong and I have no obligation to make any effort to actually demonstrate it, everyone is simply supposed to accept it.”
If we were talking about physics or brain surgery or rocket science, you’d have a better leg to stand on. But the law is words. The law is words and about ideas and actions and fairness that people have been making and remaking and making over again for hundreds of years. Rocket science and physics are not “subject to interpretation”, at least, not in the same way the law is. The law is (theoretically) supposed to be accessible to the average person, since it is about average people in the way rocket science is not. It is (theoretically) supposed to be understandable to me and mswas and FP, because it’s about us. It’s about our lives, our work, our families, our finances, our choices and our struggles.
It is a joke, because it’s so true, that laws were written by lawyers to keep them working. It doesn’t have to be so dense that the only way to understand it is via years of law school, and it isn’t, at least, not all parts of it. Unlike rocket science and physics and medicine, the books on law (at least the ones I’ve been reading, as I said before, it’s a VAST topic) are not talking about things outside my experience or knowledge, they are talking about human interaction and how to categorize it. They are talking about words and what they mean.
The hearsay issue. It’s definitely dense and complicated stuff. But it’s not arcane formulas. It’s not a chalkboard full of what are to me and most people gibberish symbols. Its a set of rules about what is allowed to be said by a person in the context of testifying in courtroom. How can anyone hope to assert that this is impossible to be understood without passing the bar? What did you do to understand it in law school, except read the laws, discuss them, look at case examples, and challenge and be challenged with different situations that the laws might apply to? That is what’s done in the courts themselves!
The whole reason I brought my shit into this forum was to get help. Not help in the form of getting someone with the law degree to step in and tell me what to do or how to think or to step up and be my lawyer. Help understanding what I MUST understand in order to do what I MUST do, which is most importantly fight to recover what I can of the life savings of dear friends. There’s no more money to give to lawyers. There was NEVER money to give to lawyers, and there was NEVER a way to avoid this except to let the THREAT of lawyers and the damage thy can do make me give up everything I have in life, and I was not willing to do that. I don’t accept that that makes me crazy or a fool.
The fact that the overwhelming response has been to sneer and mock makes me sad, of course, but it also shocks me because of the fact that this is, after all, the Straight Dope.
Which winds around to where I was intending when I started this, which was to say: if you want to make this about proving that you are the smartest people in the room, feel free. PROVE it. Have the discussions about the issues and laws, SHOW how your arguments and thinking and understanding really are genuinely superior, don’t just say they are because you say they are. Don’t just bleat constantly that because 20 of you said you know better, you know better. I’ve met too many stupid lawyers in my life to believe that. Demonstrate your brilliant skills of reasoning. Show me and others why we are wrong, I for one genuinely welcome it because I DO want to UNDERSTAND. I NEED to. It’s not at all helpful to simply TELL me: “Well, yes, it appears to your puny and crazy little brain that the words say what they say, but they don’t really, and it’s so hilarious and pathetic for you to imagine you really understand what they say or could ever hope to!” It’s very helpful to SHOW me, explain WHY and HOW my understanding is wrong.
And finally, look at how fucking sad and stupid this is: when I show up and say “Let’s have a discussion about these concepts because I’d like to understand them better” I get attacked and beaten down and told to get a lawyer (over and over and over and holy fucking god do you not understand I CAN’T?) and then told that ANY such discussion is “advice” and you simply cannot possibly consider having such a discussion…
BUT…
When I come in and say “Hey, check this out! Look what I learned!” a bunch of lawyers whose only contribution to any of this has been the bullying and derision show up to deride and bully some more, AND start talking about the concepts involved!! (Granted, mostly to say: isn’t it hilarious how stupid non-lawyers are about thse things we get so perfectly!, but stilll…)
So if I ask nicely, I am dismissed and told it’s not possible.
If I simply assert that I know something is so, there’s no problem at all with talking about it.
I guess that’s how I’ll formulate my questions in future then, and maybe I’ll get some information.
OP Title: Hey Stupid Lawyers, Look What I Know! HA HA!
Then write a mocking paragraph explaining what I think I know, and I’ll be deluged by lawyers wanting to stomp me into my place, and they’ll give me what I wanted in the first place: more information and a better understanding.
Ok. Got it.
:rolleyes:
I actually wrote up an analysis of the cases that you quoted in the last thread, the ones about attorney-client relationships. It was a couple of pages long. Then I went and read the original article, and lo and behold the professor who wrote the article said pretty much the exact things I said and came to the same conclusion. I felt that if I had posted my analysis of the issue I would be merely repeating things, AND if you had taken the time to read the original article you would have already known all that I had to say about the issue.
The thing is, you didn’t understand that the article was an excellent analysis of the law in this area, and if I had cared to debate the law in this area you would still not understand that my analysis held weight either. When lawyers in these threads actually take the time to discuss an issue with you, you will tell them they’re wrong even when they’re clearly right (take the hearsay issue earlier – there are several exceptions that it might fit in, and one statement was not hearsay) and then you’ll be insulting again even when they were kind enough to take the time to approach you in an evenhanded way.
In other words, I do not think you will get the “discussion about the concepts” that you think you want. What you will get is a discussion about the issue, you disagreeing with what learned professionals have to say, and then the learned professionals telling you (kindly or unkindly) that you’re wrong. And then you blowing up at them.
In large part I do. What I mean is this: I flatter myself that I’m a pretty good writer, although probably not a great one; it’s a point I’m proud of, actually. I try to write in a manner that is engaging, occasionally humorous, logical, understandable, and brief. As brief as I can be and still make my point, I mean, which is not to say I don’t occasionally run long. In these respects, I write the same way on the Boards as I do in my professional writing and my creative writing. I try not to assume the audience knows what I’m talking about; I try not to assume the audience even cares what I’m talking about unless I grab and hold their interest; I try not to bore them; I try to use short sentences (although I fail at this regularly) and short paragraphs (better at this, but not great); to write tightly, with good pace and flow.
So you could, in fact, get a pretty good, if loose, idea of how I write a brief or motion (or short story) by how I write here.
When you are trying to explain yourself, you write long, dense, hard to follow, frequently monotonous posts that require effort to read. Your last post is a great example of one. Now, maybe you’re right, maybe you’re a model of brevity and clarity off-line. Maybe the way you write here is due to lack of time to self-edit, a la Pascal, who once said “Forgive me for sending you this long letter, but I did not have time to write a short one.” But I still think that it’s a good guess that you write mostly the same way on- and off-line – most people do. If you don’t – good for you. And this not a new opinon, BTW; weeks ago my suggestion to you, offered in good faith, was that you be sure to have someone read and edit your appellate brief before you file it. This is why I suggested that.
I have been reduced to tears of laughter by a title opinion on an old royalty agreement, and by an educational article on the value of cross-conveyed poolings (both oil & gas related)
Funny lawyers are awesome.
This is manifestly not true, but of course you would believe it. As has been noted repeatedly, anything you don’t agree with, you reject out of hand. If people don’t give you what you want, they are merely tossing you “chum.” If they don’t agree with you, they are wrong. If they insist on maintaining their POV and not conceding that you’re right (because they don’t think you are), they are “middle-school bullies”.
No one has any obligation to prove shit to you. You have repeatedly shown, in this thread and elsewhere, that efforts to prove anything to you are completely wasted, bucause you are never wrong. NEVER. You’re never wrong, and you never listen. You start out with a destination in mind, and anything that IYO doesn’t move you towards it is “unhelpful.” You are not interested in hearing that maybe your destination isn’t the right one, you are not interested in hearing that maybe there’s a better way to get there, you certainly aren’t interested in hearing that you need professional assistance getting there. But don’t worry: When you crash – and chances at this point are pretty high that you’re going to crash – it won’t be your fault, it won’t be that you hear only what you want to hear and reject everything else out of hand. No, it will be because the Mean Old Lawyers have written the laws specifically to keep themselves in business and keep you out. And why? Because we’re an unethical cabal of liars and incompetents, lacking your intuitive genius for the law. You shit on us and on our profession, you call us asshats and worse, and then you have the balls to ask for help, because in addition to your faults of analysis and self-awareness, you’re a big honkin’ hypocrite.